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[ GR No. 6866, Aug 31, 1912 ]



23 Phil. 108

[ G. R. No. 6866, August 31, 1912 ]




This appeal was  raised, through a bill of exceptions, by counsel for  the  Director of Lands, against the judgment rendered  in  this case by the Honorable  Pedro Concepcion, associate  judge of the Court of Land Registration.

By a written  application  dated May  18, 1909, the legal representative of Amada and Carmen Mestres  y Yangco, both spinsters/ applied to the Court of  Land  Registration for the registry  in accordance with law  of a parcel of land of which  his said principals claimed to be the owners in fee simple, situated on  San Jose and Gallera  Streets of the District of Ermita, Manila.  The said land, on which there was a building of strong material, is  bounded on the northeast by San Jose Street; on the southeast, by Gallera Street; on the southwest, by Manila Bay; and on the northwest, by the property of the heirs of Sergio Corrales, and has an area of 416.17 square meters, as specified in the plan and technical description subsequently presented,,  through a written motion for amendment, and approved on June 30, 1909, by the Director of Lands, in place or substitution of those attached to the record.

The said application further recited,  among other particulars, that the land in  question had been acquired by the said Carmen and Amada  Mestres y Yangco by purchase from  Harold M. Pitt,  according to a public instrument executed in Manila  on December 8, 1908, before the notary public Florencio  Gonzalez  Diez; that it was free from all incumbrance, and that there was no one, besides the applicants, who had any right or share therein.

The Attorney-General, in behalf of the Director of Lands, by  a  writing of July 23, 1909,  opposed the registration sought of that portion of  the said land comprised  between the line marked "face of retaining wall" and the water of the bay,  as shown in the attached plan  which was made an integral part of the opponent's brief, on the ground that such land belonged to  the Government of the United States and was under the control of the  Philippine Government, and asked that the applicants' petition be denied arid that, should the disputed parcel of land be found to belong to the Insular Government, it be adjudicated thereto  and the proper certificate of registration issued in the name of the same.

The case came to trial on the 15th and 24th of September, 1909, and  oral and documentary evidence was introduced by  the parties thereto.  On the 27th of September of the same year, an  ocular inspection  was made  of  the land in controversy and  in the record thereof  an entry was  made attesting to the presence  on the said property, of the attorney,  Francisco Qrtigas, of the honorable judge of the Court of Land Registration, of the assistant  attorney, Juan Medina, in representation of the Director of Lands, and of the architect, Arcadio Arellano, in behalf of the applicants, and, further, to the following facts: That Mr. L. C. Knight did not  remain on the ground referred to, but left after having seen the situation of the stones, the subject of the inspection, stating that it was  not necessary for him to be present at the latter; that, during the said proceedings, Attorney Ortigas requested that  the facts hereinafter stated be made of record, to wit, that the two last layers of stone in the lower  part of the foundation, as could be seen, were of old stones and formed the  base  of the old foundation; that the  extreme outer line of the building, toward  the shore, did not  extend beyond  the line of  the old foundation;  that, before the wall such as  it appeared to be constructed,  there still  existed  the remains of several  piles, as one of them was  plainly in sight, which indicated  the limit  of the  old Wall; that,  at the  end of Gallera Street, in the  part  thereof adjacent  to the  sea, there was an area which embraced nearly two-thirds of the space comprised hetween the shore and San Jose Street and on which masonry work  had been constructed to prevent the waves from continuing to undermine the ground of Gallera Street, the foundation  of the said masonry work coinciding, more or less, with  that of  the wall of the property in question; that the ramp  of the wall mentioned,  which was still preserved as formerly,  had been  partly  expropriated by  the municipality, ancj formed a united  part of the old foundation in sight;  and that, at the time of the inspection, if was low-tide.  AH of the foregoing facts, stated by  Attorney Ortigas, were  by order of the court made of record.

On  the 16th of March, 1910,  the attorneys for the applicants  and the Attorney-General presented,  with a plan of the land, an  agreement of facts couched in the following terms;  Whereas L.  G.  Knight died in  November of last year after having stipulated (p. 40 of the record)  with  the counsel for the applicants that he would  appear on  the premises  and land in question during  the time of high          tide,   said counsel and the Attorney-General have agreed, very  particularly the former, to compromise  and  admit, as of a thing decided, that during the high and the mean tides  the water of Manila Bay reaches as far as the  perpendicular face of the  old retaining wall which formerly served as a boundary of the land sought to be registered, which is equivalent to saying that the ramp  of the  said retaining wall then becomes entirely covered by the water Which reaches  the point  marked X on the attached  plan that  forms a part  of  the  present agreement (p.  54 of record).

By a written  petition of April 20, 1910, counsel for the applicants set forth that, as one of the latter, Carmen Mestres,  had  died,, they requested that the name  of the  said deceased be substituted by that of Gregoria R. Yangco, 63 years of age, a  widow  of the late Benito Mestres and to whom, as the mother and sole heir of  Carmen  Mestres, all the latter's estate was awarded, in accordance with the order of partition of January 15, 1910, issued in re the intestate estate of the said deceased, Carmen Mestres.

A day having been set for a continuation of  the hearing of the case, the parties petitioned that judgment be  rendered without further proceedings,  and on November 28, 1910, the court pronounced judgment  by disallowing the adverse claim filed by the Director of Lands and by decreeing the registration and adjudication of the said property in favor of Amada Mestres y Yangco and Gregoria R. Yangco y Ronquillo, in accordance with Act No. 496, together with other findings.   From this judgment the acting Attorney-General excepted, moved for a  rehearing and announced his intention to file a bill of exceptions.  By order of December 24, the said motion was overruled and an exception  there to was taken on the part of the Attorney-General with the request  that all  the evidence adduced by both parties contained in the record be made an  integral part  of the bill of exceptions which, when  presented,  was approved  and transmitted to the clerk of this court.

The opposition of counsel for the Director of Lands to the inscription in the property registry of the land in question, belonging to the applicants,  solely concerns the portion or strip of the latter's lot on the side thereof next to Manila Bay and which is occupied by the containing wall constructed with a ramp by some former owner of the land for the purpose of preventing an encroachment thereon of the water of the  sea and  a destruction of the property thereby,  or,  according  to  the  plan  that  accompanied the opponent's claim and is found on page 23 of the record, the portion of land  comprised  between  the line marked with the words "face of retaining wall' and the water of Manila Bay.   Said counsel claims that  this strip of land belongs to the Government of  the United States and is  under the control of the Philippine Government.

The adverse claim  is founded on  the alleged fact that, as the said portion or strip is shore  land, it belongs to the public domain, in proof of which counsel for the opponent and appellant cited article 339 of the Civil Code and article 1 of the Law of Waters of August 3,1886. 

The said article 339 of the Civil Code provides: "Property of public ownership is - 

"1.  That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, and banks, shores, roadsteads,  and that of a similar character."

Article 1  of the Law of Waters of August 3, 1886,  published in the Official Gazette of September  24, 1871,  with cumplase decree of the Governor-General of these Islands, is as follows: 

"The following are part of the national domain open to public use: 

"1.  The coasts or maritime frontiers of Spanish territory, with their coves, inlets, creeks,  roadsteads, bays, and ports. 

"2.  The coast sea, that is, the maritime zone encircling the coasts, to the full width recognized by international law. The State provides for and regulates the police supervision  and uses of this zone, as well as the right of refuge and immunity  therein,  in accordance with  law and international treaties. 

"3.  The shores.  By the shore is  understood that space alternately covered and  uncovered by the movement of the tide.  Its  interior or terrestrial  limit is the line reached by the highest equinoctial tides.  Where the tides are not appreciable,  the  shore  begins on the land-side at the line reached  by the sea during ordinary storms or tempests."

The contention, then, of the representative of  the Government is that the  portion of land occupied by the containing wall, together with its ramp, the registration  whereof he opposes, is a part of the  shore  and  belongs to the  public domain and, therefore, is not susceptible of private appropriation, nor of  registration in  the  property registry; he does not, however, lay any claim to the rest of the applicants' lot.

If the record of the case  had shown satisfactory proof that the  containing wall, upon which now rests a part of the building erected  by the applicants, was  constructed on the shore  of the bay,  the  opposition made  by the Attorney-General  in the name of the  Director of Lands,  would have been well founded.

The mere  fact  that at the  present  time the water of the sea reaches the greater part or nearly the entire height of the  said containing wall, is  not  proof that this wall  was built on the shore.

In the deed of  sale of the  land in litigation, executed, on October  6, 1908,  by Mr. Harold  M.  Pitt,  in behalf of the Misses Amada and Carmen Mestres y Yangco  (Exhibit B, p. 5 of the record), it is  set forth, in  the description of the area  and  boundaries  of the property, that the  land is bounded  on the rear, the southeast side, by the shore of the bay.  In another deed of sale of  the  same land  and of the same date, executed by  P. G.  Eastwick, an agent of  the International Bank, as the attorney-in-fact of Mr.  William S. Makenson, of the State of California, in favor of the said Harold M. Pitt, it likewise appears from the description of the metes and bounds of the said land that the same  is bounded on the rear, the southeast side, by the shore of the bay, and that three small houses of light material existed on the lot.

In the certificates of the registrar of titles of this city (pp.  14 and 25 of the record), it likewise appears,  in the descriptive part relative  to the said lot, that the same  is bounded on  the rear, the southeast side, by the shore of the bay, and further that one of the former acquirers of the property had purchased it, on July 15, 1890, from its original owner, Benigna Sinchongco.

So that the containing wall, constructed on the extreme end of the land in question towards the bay, was not erected on the shore,  but on  the  very portion  or strip of the lot bounded by the shore, and was built, not by the applicants in 1909, who erected  the  building that is on the said lot, but, several years before, by some one of the former owners of the land and for the purpose of preventing the encroachment of the water of the bay and preventing the destruction of the land by the natural action of such  water.

Through the ocular inspection made by the judge of the Court of  Land Registration, in the presence of the  applicant's attorney, the assistant attorney and an employee of the Bureau of Lands, all of whom officially visited the said land,  it was verified in an unquestionable manner, and, as a  result of the inspection,  it was  made  of record, that the two last layers of stone in  the lower part of the foundation of the building, which projected  out of the  water of the sea, were of old and ancient stones; that the extreme outer line of the new building, toward the shore, did not extend beyond the line of the ancient foundation consisting of the said old stones that, in front of the containing wall,  there still existed the remains of  several  piles, one of them plainly in sight, which indicated the limit of the old wall; that, at the end of Gallera Street, in the part thereof immediately adjacent to the sea, there was an area which  embraced nearly two-thirds of the space comprised between the shore and San Jose Street and on which masonry work had been constructed to prevent the waves from continuing to undermine the ground of Gallera Street, the  foundation of the said masonry  work coinciding, more or  less,  with that of the wall of the applicant's building; that the ramp of the aforementioned containing wall, which had been preserved in its  former state,  formed, in  a part thereof that had been expropriated by  the municipality, a  united whole with the old foundation in  sight; and that, at the time of the inspection, it was  low tide.   All of the foregoing particulars were by the court made of record, as being positive facts.

The  contractor, Arcadio Arellano, stated in an  affidavit, page 43 of the  record, that upon examining for  the first time the side of the lot toward the bay,  he found that the aforesaid containing wall existed, with its ramp,  and was provided with  a stone railing; that the new house erected on the lot was constructed on the side toward the sea, on the said containing wall,  which was very old and had already existed on  the said side of the lot prior to the construction of the house that was standing there, the outer line of which did not exceed the outer line of the said  wall on which the uprights of the house stood; and that there was a distance of about 20 meters between the containing wall mentioned and the containing wall of the boulevard then being built.

As a result of the construction of the port of Manila and of the  breakwater running  toward Malate and Pasay, and owing  to the work done on  the reclaimed land, the water therefrom  has for some little time past been inundating the shores  and lots of the districts of Malate and Ermita, which indicates either  a slow and gradual sinking  of the  lands near the bay or that, through other causes, there is a greater rise of the water of  the bay in the ebb and flow  thereof, thereby bringing about the inundation of the said lots.

Counsel  for the applicants, in their brief in this  instance, state without  contradiction  that the shore immediately adjacent  to the District of Ermita extended at low tide to a distance of about a hundred brazas from the extreme end of Gallera  Street, but that that shore has now disappeared, for the municipality had to construct a containing wall to prevent the destruction, by the encroachment of the water of the sea, of the part of the said street bordering on the bay.

Though the shore next to the lot in question and to Gallera Street should have  disappeared, on account of its  being covered  by the water of the sea,  and the building constructed by the applicants on the said old containing wall, which was already in  existence before they purchased the lot in question from the last of its previous owners, should now appear to border on the water  of the bay, it does not necessarily follow that the containing wall in litigation was constructed on  the  shore, because the latter  was beyond the limits of the lot in question and at the present time is under water.  It is undeniable that when the said containing wall was constructed,  the water of the sea was  already making  advances toward the  lot mentioned  and entirely covered the shore on which it then bordered, and that this wall was erected in anticipation of the damages that might result to the property  therefrom.

Moreover,  there is no proof in the record that the land sought to be registered has at the present time a greater lineal extension on the side next to  the bay than it should have, nor that a part of the building erected  on the land projects or extends beyond the outer line of the old. containing wall immediately  adjoining the sea,  thereby invading property belonging to the state.

In conclusion, it appears, then, to  have been  duly proved that the said containing wall  was erected by one of  thfe original  owners of the property, on and  within the same, and that the opponent has not established that it was constructed  on the shore or on public  land belonging to  the Government.  Therefore, the adverse claim filed by counsel for the Director of Lands has no legal foundation  and there is no just nor  reasonable ground  upon  which to oppose the registration of the said land as  the exclusive property of the applicants.  The land herein concerned is in similar circumstances to that referred to in  case No. 6019, Aragon vs. The Insular  Government (19  Phil. Rep., 233).

For the foregoing reasons, whereby the errors assigned to the judgment appealed from are held to have been refuted, it is our opinion that the said judgment should be affirmed, with the costs against the appellant.  So ordered.

Arellano, C. J., Mapa, Johnson, and Trent, JJ., concur.